Morris v. Morris

• Decision Date: 10 November 1989
• Docket Number: 881394 and 881426,Nos. 870592,s. 870592
• Parties: James D. MORRIS, et al. v. James W. MORRIS. DOOR SYSTEMS, INC., and Erie Insurance Exchange v. Clyde M. HOOD. PITTSBURGH PLATE GLASS v. Robert J. TOTTEN. Record
• Court: Virginia Supreme Court

Page 858

385 S.E.2d 858

238 Va. 578

James D. MORRIS, et al. v. James W. MORRIS.

DOOR SYSTEMS, INC., and Erie Insurance Exchange v. Clyde M. HOOD.

PITTSBURGH PLATE GLASS v. Robert J. TOTTEN.

Record Nos. 870592, 881394 and 881426.

Supreme Court of Virginia.

Nov. 10, 1989.

[238 Va. 580] Susan A. Evans (Siciliano, Ellis, Dyer & Boccarosse, on brief), for James D. Morris, et al.

Lawrence J. Pascal, Susan E. Cummins, Kathleen G. Walsh (Ashcraft & Gerel, on brief), for James W. Morris, Clyde M. Hood and Robert J. Totten.

Benjamin J. Trichilo (Lewis, Tydings, Bryan & Trichilo, on briefs), for Door Systems, Inc., Erie Ins. Exchange and Pittsburgh Plate Glass.

Present: CARRICO, C.J., and COMPTON, STEPHENSON, RUSSELL, THOMAS, ^* WHITING, and LACY, JJ.

RUSSELL, Justice.

We consolidated for argument three workers' compensation appeals from the Court of Appeals of Virginia. Ordinarily, in cases originating before the Industrial Commission, a decision of the Court of Appeals is final, Code § 17-116.07(A)(2), but we granted appeals in these cases because they involve "matters of significant precedential value." Code § 17-116.07(B). The facts in the three cases differ substantially and will be separately described below. The cases, however, involve a common question of law: whether an injury resulting from repetitive trauma, continuing mental or physical stress, or other cumulative events, amounts to an "injury by accident" within the meaning of Code § 65.1-7, a prerequisite for compensability under the Workers' Compensation Act. Because all three cases turn upon that question, we decide them in a single opinion. The facts will be stated in conformity with the findings of the Industrial Commission.

MORRIS v. MORRIS, Record No. 870592

On December 3, 1984, James W. Morris, the claimant, was employed by his son, James D. Morris, trading as Fiberglass Engineering Company. The claimant drove a truck from his place of employment in Northern Virginia to Richmond to pick up fiberglass materials. When he arrived at the warehouse in Richmond, he found it necessary to lift 96 cartons of fiberglass, each weighing approximately 50 pounds, from a loading dock and lower them into the bed of his truck, which was positioned eighteen inches lower than the dock. Ordinarily, he would have used a forklift, but the dock was not so equipped. He felt no discomfort while loading the truck. The loading process took him approximately 45 minutes.

After loading, Mr. Morris got into the truck and drove away from the dock. After a very few minutes, he felt warmth, dizziness, and nausea. He stopped the truck, rested for 30 minutes, felt no better, and returned to the warehouse to ask for help. He was taken by ambulance to the Medical College of Virginia about 10 minutes later. There, a physician diagnosed his condition as an acute myocardial infarction. He was found to have a total occlusion of a coronary artery. He had evidently suffered from heart disease for some time. An electrocardiogram performed at the hospital showed an "[o]ld inferior anteroseptal myocardial infarction of indeterminate age." He remained in the hospital for three weeks and returned to work two months after his heart attack.

Mr. Morris applied for compensation benefits. The case was heard by a deputy commissioner, who denied the application, holding that the claimant had failed to prove an "injury by accident" consisting of an identifiable incident that occurred at a reasonably definite time, as required by our then-recent decision in Kraft Dairy Group v. Bernardini, 229 Va. 253, 255-56, 329 S.E.2d 46, 47 (1985). On appeal, the full commission affirmed. Mr. Morris appealed to the Court of Appeals which, citing its earlier decision in Bradley v. Philip Morris, 1 Va.App. 141, 336 S.E.2d 515 (1985), reversed the Industrial Commission and remanded the case for an award of compensation. Morris v. Morris, 4 Va.App. 193, 355 S.E.2d 892 (1987).

DOOR SYSTEMS, INC. v. HOOD, Record No. 881394

Clyde M. Hood, the claimant, worked for Door Systems, Inc. in September 1986. His work involved the installation and repair of large steel garage doors. On the morning of September 15, the claimant was assigned to deliver garage doors to a shopping mall under construction in Arlington. The claimant and a co-worker unloaded seven steel doors from a truck over a period of approximately an hour and a half. About noon, the claimant felt soreness in his lower back. He later testified: "I figured I pulled a muscle which, you know, was nothing unusual." He continued to work the remainder of the day, but he noted that the pain grew more intense as the day progressed. The co-worker testified that the claimant worked at a "pretty regular pace all day" and never mentioned any injury. The claimant worked a full shift the following day, but was unable to perform his normal duties and went to the hospital.

The claimant returned to work thereafter, but could perform only light duties. On October 3, he underwent a myelogram at Potomac Hospital, which revealed a ruptured cervical disc. On October 8, a surgeon performed a discectomy and fusion.

In a recorded statement received in evidence, the claimant stated that he could not recall any specific incident which caused his injury. He said the only reason for his belief that he had been injured on September 15 was because he had developed soreness on that day.

The deputy commissioner who heard the evidence found that "the claimant was not injured as the result of a specific rolling steel door. He testified he felt a soreness during the hour or hour and one-half that he was unloading four or five doors." Nevertheless, the deputy commissioner concluded that, because of the decision of the Court of Appeals in Bradley v. Philip Morris, supra, it was unnecessary for the claimant to establish that he was injured as a result of a "specific action." The deputy commissioner noted that the claimant "must prove an identifiable incident but the Court of Appeals has held an identifiable incident is 'a particular work activity which takes place within a reasonably discrete time frame' [citing Bradley ]. In Bradley, that Court held three hours could constitute a reasonably discrete time frame."

The deputy commissioner awarded compensation and the full commission, also citing Bradley, affirmed. By order entered November 29, 1988, the Court of Appeals, again relying on Bradley, affirmed the order of the Industrial Commission.

PITTSBURGH PLATE GLASS v. TOTTEN, Record No. 881426

In August 1985, Robert J. Totten, the claimant, was employed as a glazier by Pittsburgh Plate Glass Industries. On August 16, he was engaged in the installation of insulated ceiling panels in a high-rise building, continuing work begun the previous day. The claimant stood on a scaffold and held the panels, each weighing 30 to 35 pounds, over his head while securing them in place with a drill and screw gun. It was a hot day and there was no ventilation or air conditioning. When beginning his work shift at 6:30 a.m., the claimant told a co-worker that he "didn't have any get-up-and-go power." In a deposition, he stated that he had told a co-worker that he "felt funny" at that time, but at the hearing he denied making the latter statement. The claimant worked steadily from 6:30 a.m. until taking a break for a snack about 9:00 a.m., at which time he began to experience pain which he thought was indigestion. He walked down from the eleventh floor to the second floor, where he rested while co-workers sent for an ambulance.

The claimant was taken to Fairfax Hospital where he was found to have an acute inferior wall myocardial infarction. He underwent a cardiac catheterization on August 22 and was not released to return to work until November 18. The medical records state that Mr. Totten's "[r]isk factors are positive for smoking and family history." He was 58 years old, and had smoked two packs of cigarettes a day since age 20. He had also consumed a case of beer per week for many years. The operative notes show that he was suffering from a 60% to 70% narrowing of one coronary artery, and 100% occlusion of another.

The deputy commissioner who heard the evidence concluded that the "work activity engaged in by the claimant from 6:30 to 9:30 a.m. on August 16, 1985 qualifies as an injury by accident." Relying on Bradley v. Philip Morris, supra, the deputy commissioner awarded compensation. On appeal, the full commission affirmed the award, finding that "the claimant came to work on that morning with significant coronary artery disease and that the vigorous activity in which he engaged for a period of approximately two and one-half hours resulted in coronary insufficiency ... [which] was, in fact, a specific physical change...." The commission analogized the case to Morris v. Morris, 4 Va.App. 193, 355 S.E.2d 892 (1987), discussed above. By order entered December 12, 1988, the Court of Appeals affirmed, relying on Morris.

INJURY BY ACCIDENT

The fundamental purpose of the Workers' Compensation Act, first adopted in 1918 as a virtual copy of an Indiana statute, was compensation for accidental injuries within the hazards of the employment. Feitig v. Chalkley, 185 Va. 96, 102 38 S.E.2d 73, 75 (1946). In 1944, a carefully limited coverage for occupational diseases was added to the Act. Acts 1944, c. 77. The Act has always required the claimant to carry the burden of proving, by a preponderance of the evidence, A.N. Campbell & Co. v. Messenger, 171 Va. 374, 379, 199 S.E. 511, 514 (1938), (1) an "injury by accident" or occupational disease, (2) arising out of, and (3) in the course of, the employment. Code § 65.1-7. The Act expressly excludes coverage for disease in any form unless the disease results from those causes. Id.

The General Assembly created the Workers' Compensation scheme as a carefully balanced societal exchange between the interests of employers, employees, insurers, and the public....